Convicted abuser denied custody of daughter, 5 HARFORD COUNTY

A Harford Circuit judge erred in awarding legal custody of a 5-year-old girl to her father, on probation for sexually abusing an older stepdaughter, the Maryland Court of Special Appeals has ruled.

The decision by the state's second-highest court represented a victory for a Harford County woman who fled to her native Kentucky in August 1991 to prevent her ex-husband from having unsupervised visits with the child. While she was in hiding, a Harford Circuit judge awarded custody to the father, but delayed the effect of the ruling.

In their opinion last week, Judges John J. Bishop Jr., Rosalyn B. Bell and Robert F. Fischer said it was "inconceivable" that a parent who believed a child was being sexually abused would "surrender the child to the abusing parent without stringent safeguards. The fact that the judge does not agree with that parent's fear is immaterial."

The ruling, however, was "unreported," which means it cannot be cited in other legal arguments, said Helen Szablya, a spokeswoman for the state Department of Human Resources.

Mercedes Samborsky, a Joppatowne lawyer who represented the mother in the appeal, praised the ruling.

"I never consider justice being done a victory; I consider it justice being done," said Ms. Samborsky. "I think the court was looking at the total picture of what's in the child's best interest."

The parents divorced in 1987 after the woman learned that her then-11-year-old daughter had been sexually abused by the father, who subsequently was convicted of the offense. A year later, the guilty verdict was thrown out and the father was placed on five years' probation.

The mother took the 5-year-old into hiding after a Harford Circuit judge ordered that the child's visits with her father could be unsupervised. She agreed in June to allow officials in Kentucky to intervene.

The mother said in a telephone interview from Georgetown, Ky., that she is pleased by the Maryland Court of Special Appeals' ruling. She said it returned custody to her as far as Maryland courts are concerned, and she welcomed the appellate judges' suggestion that the entire case be transferred to Kentucky.

"I'm very excited," she said. "We don't know what all the implications are yet, but we've been trying all along to get the case heard in Kentucky courts."

Since the mother agreed to come out of hiding, her 5-year-old daughter has been in a foster home under the supervision of Kentucky authorities. The mother has been allowed to visit.

John Love, a Bel Air lawyer who represented the father during some portions of the Maryland custody case but not in the appeal, would not accept a telephone call from a reporter seeking comment yesterday.

Edward Dove, a Lexington, Ky., lawyer representing the father in the Kentucky portion of the case, declined comment, saying, "I'm not involved in the Maryland action."